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  • Appellants Factum R Vs Salmon

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    Appellants Factum R Vs Salmon

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    Appellants Factum r vs Salmon

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    60282 COURT OF APPEAL FOR ONTARIO: BETWEEN: HER MAJESTY THE QUEEN Respondent cand JOHN FREDERICK SALMON Appellant APPELLANT'S FACTUM James Lockyer Marie Henein LOCKYER CAMPBELL POSNER HENEIN, HUTCHISON LLP Barristers & Solicitors 235 King Street East 30 St. Clair Ave, West Suite #3 Suite #103 ‘Toronto, Ontario “Toronto, ON M4V 31 MSA 119 Tel: 416-368-5000 Tel: 416-847-2560 Fax: 416-847-2564 Counsel for the Appellant “Fax: 416-368-6640 Counsel forthe Appellant 60282 COURT OF APPEAL FOR ONTAKIO BETWEEN: HER MAJESTY THE QUEEN Respondent. and = JOHN SALMON Appellant APPELLANT'S FACTUM. INDEX Page PART1 STATEMENT OF THE CASE. 1 PART STATEMENT OF THE FACTS A. THEEVIDENCE AT TRIAL 1. Jack Salmon and Maxine Ditehfield bias eial 5 2, The Events of Friday, September 18 and Saturday, September 19, 1970 .........8 ‘The Events of Sunday, September 20 10 4. The Events of Monday, September 21 .. B S. The Pathology Evidence oS 6. Counsel’s Closing Addresses (@) Defence closing 20 () Crown Closing 20 7. The Charge to the Jury, Jury Deliberations and Sentencing ....... cess 20 8. The Appeal to the Court of Appeal . paaasetae 2 PARTI THE FRESH EVIDENCE, L ‘The New Pathology Evidence (@) The Head Injuries (Did Ms. Ditchfeld’s Brain Contusion Result from a Blow or a Fall? (8) there Sgifcance to th Lection ofthe Brie on the Top ofthe Scalp? 7 The Severity of the Head Injuries .. (iv) The Arterial Dissection ...... (9) Is there Significance tothe Petechial Hemorrhages in the Brain? (©) ‘The Superficial External Injuries .. (The Injuries in the Areas ofthe Nose, Jawline and Chin Gi) The Balance ofthe External Injuries (© Te Lkeond ht Ms, Died neared Her nus Trough a Series of Shor Falls... (@ What was the Cause of Death? ‘The Forensic Pathologist and the Clinical Patholog Other Issues Related to Dr. Dietrich’s Trial Testimony (®) Testimonial Language Issues ) “Thinking Diny" .. ‘The Applicant’s Arrest and his Statement to the Police ‘The Admissibility of the Fresh Evidence . (@ The Evidence is Sufficiently Cogent in That it Could ‘Reasonably Be Expected to Have Affected the Verdict (®) Why Was the Evidence Not Adduced at Trial, and ‘Should the Explanation Affect its Admissibility? PARTV ORDER REQUESTED AUTHORITIES 4 29 31 31 2 ners 40 a a 45 3 34 COURT OF APPEAL FOR ONTARIO BETWEEN: HER MAJESTY THE QUEEN ‘Respondent and - JOHN FREDERICK SALMON ‘Appelant APPELLANT'S EACTUM. PART.1- STATEMENT OF THE CASE, 1, This is an appeal by John (Jack) Salmon of his conviction in 1971 for manslaughter inthe death of his common-law wife, Maxine Ditchfield, after a reference to this Court by the Supreme Court ot Canada pursuant to s. 43(1.1) of the Supreme Court Act. After the Reference, the Respondent retained a neuropathologist for an opinion on the case. On February 11, 2015, after receiving the neuropathologis’s report, the Respondent wrote tothe Appellant and advised: ‘Specially we wlljoin you in recommending thatthe Courtof Appeal overtura Mr Salon's 1971 conviction for mansaughter and enter an acquital. ‘Lam now in a postion to advise you thatthe Crown has completed it investigation into the ‘Proposed fresh evidence la this ease and we intend to concede this appeal. ‘Lene: from Crows Counsel to Appellant's Cousl dated Fb, AB, Vol 1, Tab 10 2. At10:00am., on Tuesday, September 22, 1970, Maxine Ditchfield, who hadbeen admitted tothe Woodstock General Hospital the previous evening, died there as a result ofa fatal brain injury. ‘The pathologist who conducted the autopsy, Dr. Dietrich, gave the cause of death as: 2 "ciulaay an separ fale secolay Wo ean danage caused by bau wena iced” ‘Mr. Salmon had already been arrested late Monday night and charged with assault causing bodily ‘harm on Ms. Ditchfield. After she died, the charge was raised to non-capital murder 3. Mr. Salmon was tried on the charge of non-capital murder inthe Supreme Court of Ontario in Woodstock before Mr. Justice Wright anda jury. The Crown's case was circumstantial and relied heavily on the evidence ofthe pathologist, Dr. Dietrich, Maxine’s injuries and photographs of the injuries. Mr. Salmon testified in his own defence that he had not assaulted Ms. Ditchfield at any time, He described the three days before her admission tohospital as a period during which she slept a great deal and kept stumbling and felling when on her feet. On March 5, 1971, the jury returned 1 verdict of manslaughter. On March 11, 1971, the Appellant was sentenced to ten years in the penitentiary. Ressns for Sentence, Vo. 3, 6221-62820 4. On November 10, 1972, Mr. Salmon's appeal of his conviction to tae Court of Appeal for Ontario was dismissed, Gale C.0., Evans and Amup JJ.A. presiding. He did not bring an. application for leave to appeal to the Supreme Court of Canada pursuant tos. 618(1)(b) (now s, {69(1)(0) of the Criminal Code. Ry Salmon (1979, IOC. 2a) 188 (OntC.A), AB, Vok. 1, Tab7 5. The Appellant, who was released on parole on July 26, 1974, continued to insist that he did ncthing to cause Maxine's death, He approached his present counsel for assistance in 2000, ‘Commencing in 2002, the Appellant's present counsel retained the services of two forensi= 3 pathologists and 2 forensic neuropathologist to review Ms. Ditchfield’s death. Their unanimous ‘opinion was that she died of natural causes after a fall or series of falls. 6. On June 29, 2011, the Appellant presented an application for ministerial review to the ‘Minister of Justice purstant to Part XX.1 ofthe Criminal Code. The application was based on the ‘new expert opinions, ané Mr, Salmon’s statement to the police upon his aest which was not led in ‘evidence at his tial. On January 25, 2012, Mark Green of the Criminal Conviction Review Group (CRG), and the Minister's representative onthe application, advised the Appellant that, pursuant 10, 4(1(@) of the Reguiations Respecting Applications for Ministerial Review — Miscarriages of Justice, as a result of “the new and significant information that has been supplied with your application, there may be a reasonable basis to conclude that a miscarriage of justice likely occurred in your case.” Accordinaly, Mr. Green advised that an investigation would be conducted into the application by the Miniser as required by the Regulations. “Regulations Respectag Aplications for Miniter Review -Micanags of Justice OR, 2002-416 ‘Leterto Minister Gute 28,201), AB, Vol, Tab IO: Leter rom CCRG to Appelt ian. 25/12), AB, Vo. 1, Tab 10 7. On January 30, 2012, the Respondent advised the Appellant that it was the Atomey General's position tha: the Minster did nothave jurisdiction to entertain the Appellants application {or ministerial review because the Appellant had not “exhausted” his rights of appeal as required by $696.1 ofthe Criminal Code, since be had not sought leave to appeal tothe Supreme Court of Cana 1972. To bring the jurisdictional issue to a head, on February 7, 2012, the Appellant joined an application already commenced by one Lindley McArthur inthe Superior Cour of Justice for a declaration thatthe Minister had jurisdiction to review the Appellant's ministerial review 4 application and that chee was no requirement that he first seek leave to appeal tothe Supreme Court of Canada, ete from Appellant Respondent (Js, 2612), AB, Vol 1, Tab 10; Let from Respondent to Appelt ia, 2012), ‘AB, Vol 1, Tab eter fom Appellant Misnter (Fb, 2/12) AB, Voll, Tab 10 ‘Then, on April 13, 2012, the Respondent wrote and advised the Appellant: ‘Weare now in position advise you that, should Mr Salmon being n application for an extension of time to sek leave to appeal to de Supreme Cour of Canada, te Crowe would content o tht ‘pplication, On te application fr leave, sel, theCrowa would coast oan order para 43) ofthe Supreme Cour Act, hatte case be referred bac to the Ontario Court of Appel io ‘eterine the admissibility othe fesh evidence. ‘Should Mr. Salmon elec to proceed with an application for leave to appeal tothe Supreme Court of (Canad, Irespoctfly requ tat you ask the Criminal Conviction Review Group to suspen thei tnvestgation of Mr. Salmons application for Ministerial Review, without predict coninue fot ‘any reason, the Supreme Court of Canada denies the aplication for eave sped ‘The Appellant immediately asked the CCRG to suspend its investigation of the ministerial review pplication and, on June 29, 2012, brought an application in the Supreme Court of Canada for leave to appeal the November 10, 1972 decision of the Ontario Court of Appeal, along with a 40 year extension of time application. The Appellant requesied an order pursuant to s, 43(1.1) of the ‘Supreme Court Act for a remard of his case to this Court for consideration of fresh evidence, On October 25, 2012, the Supreme Court of Canada granted the extension of time and ordered that the case be remanded to this Court." ‘Let from Respondent to Appellant (Ape. V2), AB, Vo. 1, Tab 10; Ltr fom Appelt to CCRG (Apr 16/12), AB, ‘Val 1, Ta 10 ‘The Appell aso abandoned hi aplication for a declaration i the Suptie Court of Juste. The aplication thatthe Appellant had ote was ented McArthur. Artomey General of Ontario. Like the Appellant, MeAthir hd brought 656.1 aplication for ministerial review of 21988 conviction for marr for which be had never sought leave appeal othe Supreme Court of Canada. MeAAtha's application fra declaration was head by Dambrot i the Suprie Court of Fasc on October 24, 2012; Dumbo. granted the declaration (McArthur v. Ontario (Atomey General), 2012 ONSC 5773), ‘The Atorney- General appealed to the Cour of Appeal and the appeal was dismissed on October 30, 2013, (orth. Ontario (Attomey General) 2019 ONCA G60). On Al 17 2014 the tory ‘Geoea's application fr lave to appeal to the Supreme Cour of Canada was dismissed. (MeArur ‘Ontario (Artomey General), 2014 CuswellOat 4826) PARTI ‘STATEMENT OF THE FACTS A. THEEVIDENCE AT TRIAL 1. Jack Salmon and Maxine Ditchfield 9. Jack Salmon was bom on February 3, 1940 in Brantford, Ontario. His father was atinsmith, and plumber. Mr, Salmon was a welder by trade and, atthe time of his arrest.had been employed. bby Standard Tube in Woodstock for six years. Evidence of. Salmon, Vol. 2 18/42/10, 538/10-20, ol. 3, 6080-40 10, Ms, Salmon met the deceased, Maxine Ditchfield, who had tree children, in 1967. They began dating in February, 1970, On August 1, 1970, Mr. Salmon moved in with her a her home on 90 Mill Suet in Woodstock. They subsequently moved o a house at RR. #8 in Woodstock. Jt was in this house that Maxine died. ‘Evidence ofJ Salon, Vol. 2, 18/1-42510 “Evidence OFM, Meena, Vol 1, 1840-19500, Photograph of 90 Mill Street Fehibit 9 at trial: See Appeal Rook, Vol. 3, Tab 19 Wire a eetp en He pee eiey Exhibit 19 at tial: See Appeal Book, Vol. 2, Tab 1, p.21 Evidece of. Satmon, Vol 2, 4181142820 Evidence of M Melesn, Vol, 18040-19690 2 ber 1 r 11. On Friday, September 18, Mr. Salmon worked the 4:00 pum. to midnight shift at Standard ‘Tube. Maxine had something wrong with her left eye and arranged to see the doctor about it on the following Tuesday. It was, Mr. Salmon testified, “going black a litle bit underneath the eye”. Dr. Dietrich noted an infected hemorthage in Maxine’s eye at autopsy. Evidence of. Sdsea, Vol. 7, 425/0-43/1, «7040-41720; Vol. 34990045 Evidence of War, Vol, 12, OnSaturday morning, September 17, 1970, the whole family wentto the Woodstock Market in ther 1964 Valiant. They bought some vegetables to freeze. Later inthe day, they drove to Ingersoll and purchased table and snk and other items ata bazaar They also bought some chickens a5 pets forte children. On Saturday evening, Mr. Salmon and Maxine drove to the (Claydons' home, Donald Claydon (2) and Mary Claydon (2) lived with therthee children aged 6,8 and 10 ona S2 acre property at RR #3 Prineton, near Branford. Mr Salmon and Maxine left the three children atthe Claydons'home there and drove othe nearby Paris In where they dank beer, They then retuned othe Clayons’ home. On the way, the Claydons anda fiend ofthis, Mervyn Roswell overook them on their motorbikes. They al pulled into the Clans’ driveway atthe same tne vidence of. Salmon, Vol. 2. 25/3044 Vl. 3, 02/10-50380 idence of D. Moen, Voli, 198020880 Evidence of D.Clydon, Vo 2, 3260-3840, 359/540 Bvideae of M. Cayo, Vol 2, 3761-38715 Evidence of M Mele, Vo. 1, 18040-19630, 20170-203/30 13, The adults drank cleohol in the Claydon’s garage. Mr. Salmon and Maxine argued. intermittently according to Mary Claydon, they were arguing “about sex and kids, You nane it, ‘and they argued ebout it". Mr. Salmon himself remembered arguing with Maxine “about something 9 cor other". Around 3:00 a » Maxine went into the house and brought er three chiléren tothe Kitchen door. The children were rested, and one of them was crying. Maine told Mary Caydon that she was going to walk home withthe eilden, a distance of 20 miles. She was “mad”. Mary dissuaded he, and Maxine went back outt the garage, where she andthe Azpllant began laughing together. Mary explained that, fter Maxine let,“ took [Marine's] children, tok their coats off and thee shoes, x id the thre children} onthe chesterfield.” Evidence of. Salm, Vol 2, 4425-44640; Val 3, S080, OW/I-35 Evidene of D, Clay, Vol 2 4320-3511, 3904-3607 Evidence of M Cltyon, Vol. 2, 38710-40420, 408720-40, 14, Ms. Claydon and Roswell went to bed. Donald Claydon, Mr. Salmon and Maxine moved into the kitchen, Maxine still wanted to go home and the Appellant did not. Then Maxine fell tothe floor. Mr. Salmon related her fallin his testimony: Now, did anything unusual happen when we had the thee of you sitting atte ktehen lable in thote positions you have told us about? ‘A. [believe Maxie el onthe flor, or someshing ike tht. ‘She fell or the lor? ‘She fell of he chair, or something And id you soe anything hat might have caused her to fall? A. No.1 gues I igued she just had too much to drink and fell of her cal, Donald Claycon did not actully see Maxine fall but recalled her at one point being on the floor ~ “next time I seen her, she was kind of half laying on the floor." She stayed there for 15 to 30 seconds. Mr. Salmon helped her back onto her chai. [idence of Mt. Cayo, Vol 2, 44720407140 Evidence of D. Claya, Vol. 2, 43203811, 354-3650 ‘Wil Sate of D. Claydon,Crova Brie, AB, VoL 2, Tab 1.30 See Preliinary Hearing Tr 3, Vol. 1, Tab 9, 6-20, 210-18 Evidence of Salon, Vol 2,446 = 45220; Vol 3, 80675-50715 10 15. Maxine's 8 year old son, Michae! Mclean, testified that he was aslep onthe couch. He was awakened by his mother and ME. Salmon"screaming”. ‘They were fighting, fist ouside and then inside the house. Through the washroom door and window, he saw Me. Salmon hit his mother on the grass". His mothe fell tothe ground, The reliability ofthis testimony was open to question: Michael had made no mention of his event in his statement othe police, nor during his testimony at the preliminary hearing, and no one else testified that an event like this occured. Michael further testified that he saw Mr Salmon strike his mothe with hishand one inthe kitchen and she fell. However, testimony and photographs showed that he could not have seen the kitchen table area ftom his location onthe chesterfield. According to Michel his mother then got up and told the children to goto the nearest frmhouse and call the police. Evidence of M. Melean, Vo. 18%40-196/0, 204.2060, 208/-21045 Evidence f M. Cajon, Vo 3 4065-40740 16, AfterMaxine's fll she and Mr. Salmon area to go home, Maxine ssid tht she was going ‘owalkhome and, forno apparent eon, told the children to call the police. On rival at theircar, ‘Maxine sat down on the ground in front oft. She stood up within seconds snd tod the children to- ‘tin the car, Mr, Salmon drove them all home. ‘They talked for part ofthe journey and then [axine fell asleep. Me. Salmon saw no bruises or injuries on her Evidence oJ. Salon, Vol. 2. 446/40-457/20, Vol 3, SO8/I5-51/10 vieoce of . Clayda, Vol 23511387730 Evidence of M, Mees, Va 1840-19620 3 ‘The Event of Sunday, September 20. 17, The family got home at 4:30 - 5:00 am. Sunday morning. Maxine stayed in the car and Mr. ‘Sdimon went in the house ~" Figured she would be kay there" and he left the front door open for ‘Mex.s, The Appellant put the children to bed and went straight to bed himself n ‘Evidence ofJ Salmon, Vol 2, 455720-462/15, Vo. 3, S103S-$11/3$ 18 Thenext moming, Mr. Salmon awoke at 11:00 a.m, Maxine was inthe children’s bedroom om her daughter Lisa’s bed. She was calling for Michael, and then for Mr. Selon, Mr. Salmon ‘went into the children’s bedroom. Maxine needed to go tothe washroom. He noticed, forthe frst time, that she had bruising around her left eye ~ “her eye was black”. He asked her what had happened. She replied: “Idon't know”. He thought that she might have fallen onthe conerete steps leading into the house as she had made her way into the house from the car after he had gone to bed, “He helped her to the wachroom and assictod heron tothe toilet, In is testimony, he described her as: “Well, just clumsy, you know, weak. Clumsy, I guess.” As Mr. Salmon was leaving the bathroom, he heard a noise, He turmed and saw that Maxine had fallen. She had hit the left side of her head on a fixture, either the basin or the bathtub. He described this in his tial testimony: ‘A. Isuwher ht ber bead on elter the basin othe stu in the fl. 2 ‘What part her bead? Well it was he side of er head Which ser ‘A. Iewoul bet ef side. What you do when you saw that? ‘A Wel shen a ook of surprise in her eyes, and picked her p and asked her what was rong. @ Did you getarepy? She sid sik” @ —_Upunt at pint, om te dne you wet nad found he in Lisa's bed A Yeasi 2 —oter tan sk you to take her tothe bathroom -- forget what it was -- id you have any other ‘conversation wth ber? A. No,Ldon't eles. 2 Allg. Now, you sad he wold you she wat sek? Yes siz ‘What happened next? > ere 1 puter back on eile oy did you do tht, do youemember? 1 pike her up off the oe ‘Yes, but what part fr body i you pik op? "elev I picked he up under the shou, the nde the arms. or ere ‘Andwhen you sty you pote back on the tle, in what position was she aftr you put her tack? ‘She was siting onthe toilet. pix? Yess ‘Andafer you got er there what id you do? peor ePr ‘hekeve held er on the ole that ine [He helped her to bed afterwards, He assisted her in taking her sweater off because she had vomit ‘nit. He then saw forthe frst ime the bruising on her arm that came to be depicted inthe autopsy ‘Photographs. ‘Evidence of), Salno, Vol. 2.45/20-463/0; Vo. 3, SI/-S1670, 26/5272, S39/0-54/15 19. During the remainder of Sunday, Maxine fell onto the bathroom floor twice more, and fell ‘ut of bed several times (possibly as many as six times). Mr. Salmon testified: “she couldn't get out of bed, or stuff like that. She always fell on the floor if she tried to get up.” She was “in pretty bad shape" but she was able to talk without difficulty. Maxine told him not to call adector: “No, he will only tell me am allergic to alcobol”. At one point during the day, she had a bowel movement. She asked for liquids and he gave her ginger ale. She was physically sick and he provided a pal for her. B Forensic analysis of her mates, aed pullover found inthe bath tu, and material removed from ‘he toilet bow all established the presence of vomit. Maxine asked Mr. Salmon at one pont ihe loved her, He noticed more bruising on her face, her body, her arms ander legs as the day wore on, He made supper forthe children but Maxine did not want to eat anything. The autopsy confirmed that Maxine had likely not eaten frat less 24 hours before her death. That night Mr Salmon fell sleep in ter bedroom on the floor at theendof the bed because she was using all he bed space. Evidence of Salmon, ol 2 46215-47040, Vol 3, 16/10 19465, 527302420, 5281-52914, 53920 [idence of Dr Dietich, Ve 1, 255-30 {Lab report of Von Geng, Oct. 2870, Crown Bue, AB, Vol.2, Tab pp. 7A Evidence of Von Gemmings, Vol. 2.292/-29388 4. TheEvents of Monday. September 21 20. On Monday, Mr. Salmon arose at 7:00 am... Maxine asked him if he wanted her to get up ‘and get the kids ready for school, Mr. Salmon told her that he would doit an she should stayin bed ‘and rest. She said nothing more to him after this. Whenever he looked in on ber that dey, she was asleep. Mr. Salmon did a number of errands during the day. At 11:00 a.m. he called Dr. Adams? office. He spoke to the receptionist "old the person on the phone that Maxie had fll off the wilt tnd -- dont know whether sad fellouofbed oo, bat sa fell teolet-- and she had been vorting al was sik Tout know wheter Tused the word "vomiting” bt Tmean sic. ‘The receptionist made her own notes ofthe call: ‘And aman called and sid that on Suntay morning Mrs. Diced had been rl ie, she lost her ‘lance had hit her head onthe wash asin, nde thought she ad fallen ofthe ot and tht he ad as allen ou of bd, ‘An appointment was made for Maxine to see the doctor at 4:00 p.m. “4 [idence ef Salmon, Vol.2. 46572047430, 53170-30, Bvidence fE. Ward, Vol 1 72820-23040 vide fC. Pay, VoL 2310-31890 21. Around noon, Maxine’s father, Bill Bain, telephoned Mr, Salmon who told him thet Maxine had fallen and “hit ber head against the tub". Mr. Salmon left the house to do some chores. On his ‘etum home at 2:00 pm.,he could not awaken Maxine, He called Dr. Adams's office agein and told the receptionist that she could not get out of bed. The 4:00 p.m. appointment was cancelled and it ‘was agreed Dr. Adams would make a home visit as soon as he could. Mr. Salmon checked Maxine periodically and thought she was deteriorating. He noticed that her breathing was laboured. Evidence of. lon, Vo. 2. 67440-4743; Vol. 3, 52420, 31/20, 5442040 videoce of Wad, Va i. 22820-23040 [idee of W. Bin, Vl 2: 298/-308/30 22. Ataround 4:00 pm., Maxine’ fathercame tothe house. Hehad been drinking. He and Me. Salmon rank together. Me. Bain sified that Me. Salmon was crying and told him Maxine kept falling out of bed and “that her eye was swelled shut, that she was paralyzed on onesie.” Mr. Bain did not ask to See Maxine. He was heavily intonicated when he left the house. The children were home from school and Mr. Salmon made them supper. At 6:00 pam, he called Dr. Adams's answering service: {sid they had beter get [Dr, Adams] out here, because Mace is pety bad now, sid ihe ant, ‘come out I wll pone up my doctor and have him come ot Evideoe of. Salmon, Vol. 2. 474/30.47600 Evidence of W. Baia, Vl 22981-30850, 3LU30-31445 23, AL7-45pam.,Dr. Adams arrived at the home, Mr. Salmon was very courteous with him, He told Dr. Adams what had happen ‘Ande sidshe had fillen and ha stuck erhead Sheba allen off the tet seatend sucks bsin, and also had fallen ont of bed [several] tines, 18 Dr. Adams found Maxine lying in bed, unconscious, face down. Her breathing was laboured. He ‘noted multiple bruising on her body and face, and he thought she might have suffered brain damage. ‘An ambulance was called and, at 8:15 p.m. she was taken to hospital. She was placed on oxygen and intravenous drip. Dr. Adams called the police at some point. At 10:00 am. on Tuesday, ‘September 22, Maxine died Evidence of. Salmon, Vo. 2. 8410-46140 Evidene of Dr Adams, Vol. 21720-2210, 26-40 Evidence of Dr Diewizh, Voli, 26310415 5. The Pathology Evidence 24. Dr. 1ael Dietrich was the regional pathologist for Oxford County and conducted the autopsy on Maxine’s body. He first saw her atthe hospital minutes before she died at 10:00 am. He comucued the autopey a 225 pan, aul aweditely ute “ruises atl sig of violence” on the body. He aranged for Maine's body tobe filly x-rayed forbroken bones. The x-rays revesled no evidence of any fractures. He then catalogued her injuries ~ she had 33 separate bruises, three small abrasions, and a small scratch on her body. Dr. Dietich testified: ‘The bruises wer al sy recent, thats, they wee deep ble witha yellowish gren discoloration ‘over at their borders. Theyall were roughly abou the sae age, They all appeared eft to ive ‘our prior death, yidence of De Diewck, Vol. 1, 28030-242/0, 26310415 Sev also De. Diewei's Post Mortem Report and Wil Sate, AB, Vol.2, Ta pp. 3446 25. Dr. Dietrich expressed the view that a cluster of bruises around Maxine’s knees were consistent with her having fallen one or more times. He found no cuts ob ing to Maxine's scalp. area, On an intemal examination, she had no abdominal bruising and no recent injury toher mouth. Her lft ling was substantially heavier than her right lung, which Dr. Dietrick attributed in part to 16 paralysis onthe lef side of her body. Her stomach was empty. She was in the midst of a menstrual pesiod. “Evidence of. Diet, Vol. 1, 2434028675, 2797040 26. Ds. Dietrich examined Maxine’s scalp. He made the following findings: © Shead no skull fracture © In her left temporal area, behind her left eye, there was a 5x3 cm. contusion which coresponded with the external bruise surrounding her left eye. © Inher eft temporalis muscle, inthe area of her left ear, there was a deep 5x4 em. bruise. © Onthe top of her skull, there was a broad 7.5x6.5 em. bruise inthe outer layer ofthe bone and the associated soft tissues ofthe scalp, between one and three days old. There was no ‘damage to the corresponding external area of the scalp. Evideae of Dr Diewich, Vo. 1, 78605-25820 27. Dr. Dietrich examined Maxine's brain: © Irwasextrenely swollen, and there was considerable downward herniation ofthe train, This had resulted in circulatory and respiratory failure. © There were petechial hemorthages inthe white matter on both sides of her brain which Dr, Dietrich described as indicative of a concussive type of injury. © There was a 4x4x3.5 cm. area of the under-surface ofthe brain above and behind the right ‘eye in which the tissue was “dead”. It was, Dr. Dietrich testified, “a broad contusion”; it ‘could have been caused quickly ~as a result ofa single impact. ” © Theright middle cerebral artery “this is one of the large arteries supplying most of the zone Of the brain that controls muscular movement” — was clotted, and the area of the brain. supplied by the blood vessel was softened and drying. There was no evidence of disease in the artery that could explain the presence ofthe clot. Dr. Dietich continued: ‘This was in the so-called motor are of he right side ofthe brain. Tis area supplies the smucle wit nerves on the let side ofthe body, thai it contol the movenent by its Suplied nerves ote muscles ofthe eft side ofthe by. The injury ion te ight sie it consol the muicalar moverant of tele side ofthe bod, excep for below the ke, ‘pproximatly. In other words this deat of his sso on he iht ide ofthe tain would ‘mei the pleat would be paralyzed almost completly onthe let sie ofthe tod ‘The brain injuries were all atleast 24 hours old Evideoe of Dr. Diet, Vol 1,25820-278/80 28. Dr. Dietrich concluded that a combination ofthe petechial hemorthages inthe white matter of the brain, the contusion in the right cerebral hemisphere and the death of tissue caused by the ‘middle cerebral artery clot were ll related, and all led to brain swelling which, in turn, caused respiratory and circulatory failure. Dr. Dietrich further advised that the force that caused the right cerebral contusion could have caused the injury to, and subsequent clot in, the right middle cerebral arcery. He further suggested that some of the external feial and head injuries could be related tothe ‘brain injuries. He testified that “it takes considerable force” to cause these types of brain injuries. ‘He spoke ofthe blunt forces required, and sai: ‘Bur it would ake guts bow ithe pezon wer sationary ate blow of ny cot “Evidence of Dr. Di, Va. 1, 26872027320 29, Immediately before he testified atthe tral, Dr. Dietrich went to Mr. Salmon ‘s home and. ‘examined the washroom. He was asked if Maxine’s head injuries could be accounted for by a fall in the washroom: 18 tis doubt, The distance is very -- Took some measurements thee -- and the distance fom the toilet bowl othe sink T don't have that purtula measurement -- but itis an slmost negligible distance. And the height ofthe -~thebeight ofthe tole bowls | oa aches, nd the eight of the sink was 2 fet # inches, the head would ot nove ay pea itzncet te wot bow at all= they treright beside one anaber~ eel the prt at would be struck wouldbe the let deo the ead and there jst st enough distance of movement there to ascertain ti otal. jut feo thre ust not ‘cough distance there. A peroo just sumping -- perhaps if you werestanding an fel agains the = ftom a higher distance to the sink, it's posible bt I dont fel hat ata very feasible way ‘tat his person could sss hese brced brutes here, and ceri the bruise at the vertex of the ‘scalp Ijst--itwould be very dificult to get your hend down tha fr, and eve going backed 0 do hat much damage at the back sd to it the particular plac tthe op of the sl Dr. Dietrich also viewed the rough cement staircase atthe front of the house, consisting of eleven, steps in total. He acknowledged that if Maxine had fallen on the steps, the impact could have caused. her head injuries but though this an “unlikely” scenario because itcoud happen that she coud strike that top part ofher head if she came stright down the sie, es, ‘Butt would expect withsicha rough surface there would be god evidence of eer acu oc possibly scratches, which [do find. These brutes I found on eternal examination ae buns nd theres ‘otis breakage on any of them. They are ui smoot, and he objet hat came nto contact with the skin ere wa soot I wast the ype that T would find here. Dr. Dietrich was shown a photograph of Maxine’s bed but was unableto give an opinion on whether «fall from the bed could lead to her injuries: {think t would be very ecu, not knowing the beight ofthe bed. The flor fooks frm if hat was the condition of the flo: at that tine there were 0 fo, etethese things would modify it to, snyhing ike hat cancuin the effec Evidence of Dr. Dietrich, Vol 1, 25740-26540, 2715-40, 28270-2860 ‘See pot of steps at 90 Mil Sweet AB, Vol. 3, T3b77 30. ‘The trial judge asked a series of questions of Dr. Dietrich st the conclusion of his ‘examination-in-chief a follows: Q _Dextor in your opinion, would he injres tat you have described - al of them have ‘cccuted-- that all he injuries his dead woman sustained and you observed, would they have been the rest of any ofthe ee things that have been uggeted o you ling off ‘he toilet seat, fling out ofthe be rte fling down he steps outside? A. This oubfuitisdoutful, The bathroom is very small Tas thee, sat dow ont tet bowh andthe distances ae not goat there. is very cramped 19 2 Haveyor any opinion aso what he cause ofall those was, fom your experience, assuming you knew noting of the fats here? A. Well te blow ontop ofthe hed, onthe right sie ofthe head inthe sap, and the damage ‘ote bain beneath, you woud tink wold have the someshing ver firm ike lock ot ‘wood thatthe erin did indeed fll downa Tight o as and perhaps thee was some cushioning effect Buta grea fll might doi but more likely Blow on the Bead with & Toad, bint object, and delivered with extreme force Would ithave to bean objeto could it be aft? ‘could tea ist. the person were exceptionally strong. A foot would be more likely, ery firm shoe - someting like hs. You ee, although that buse inthe ight vertex seme ‘broader faa shee, you must remener with ay bute, the bod vestls are broken and the bloc difises tad the sie ofthe ruse is ot necessarily proportional othe sizeof ‘te objectstking th head atthe impact are, Deeause he blood wil diffe ot and the area of baie wil sully be larger thn he are ht frock When I sk you your opinion you pu it you would tink something ofthat sort. These observations You have been making. ae they your opinion? ‘A Yes wi study and wit experience. uldene of De Dietrich, Vl. 1,27125:27290 31. Dr. Dietrich quali ied some of these opinions in cross-examination. In the context of the left temple injury, he said under cross-examination: ‘The blow tel, the bleeding, the bruise uel, ould posibly happen but the damage to the brain beneath -- I may confine my remarks ight nowt the bativoom =~ ules the peron were standing del eavly agaist tedgeo the sinko apa the ee othe atv, ity were onthe et Seat, hink the distance tered theres jus no enough cause the rise and the damage ote ‘rain underneath ‘AS to whether the injury tothe top of Maxine's head could have resulted from a fall, Dr. Dietrich said in cross-examination: Mispossibe,buttatiseven ess probable, because where itis -- the condition offalling woul ave ‘obejusright when youstike your bead. ou would more thnlikely tthe ontorbeck, depending which direction you were alling He noted thatthe head injuries would have required more than one impact to have occurred. Dr. Dietrich suggested “acceleration” would be required forthe injuries to have resulted: ‘To do these things you would have to wip. can see you fling forward psi tht btu, if you sort of stumble and drive youself agains, do you understand. The bead would buve 1 be ‘scelerated. Thats why Tsay dbl, becase the Czcumstances would have tobe just right Even of Dr Detrich, Vol. 28090-2820, (@) Defence closing 32. Imhis closing, defence counsel pointed out the absence of any direct evidence that Mr. ‘Salmon assaulted Maxineafter they returned home on Sunday morning. He urged the jury tobelieve Mr. Salmon’s testimony : He says be loved er. He was aot cros-examined pricy onthatpoin. He sald he dail her He saiin-chiefhe did't ske her. Gendeme, what eke have you pty way a evidene af what took place at that howe at RR. 8? Defesce Closing, Vl 3, 54670350790 (©) Crown Closing 33. ‘The Crown urged the jury to find that Mr. Salmon assaulted Ms, Ditchfield sometime after they returned home on Sunday, and to reject his claim that her injuries were caused by her falling cout of bed, and falling in the bathroom. “He intimated that, due to the evidence of alcohol consumption, manslaughter was, in his opinion, a more reasonable verdict than murder. He also ‘posited an alternative theory: ‘The kaise ify find tha thes inure ween th result of er falling at the ouse and hat she fellas the sul ofsometing hat had happened at the Clayons or anywhere, that hd been nice bythe accused, fhe set his chai nation which led ultimately to er death then I suggest 0 yOu, eileen th he has case her death by an unlawful ac, and he proper vedi o retin ain (ne of manlaugier ‘Crows Cenng Vol 3, 5620565720 ‘The Charge tothe Jury, Jury Deliberations and Sentencing 34. Ins charge, the ial jun reminded th likelihood that Maxine had incurred her head injuries before she left the Claydons’ residence. He au then put the Crown’s primary and secondary theories tothe jury: [Ris opento you, ifyou wis to accept Micha! [cleans] evidence tat thre were blows, but reject Dr, Dietrich evidence tha she could not ave walled t the car, 9 come oa verdict of murder oF ‘manlaughar o that evidece aloe, if you deal wi it that way. Bu the Crown realy dos ot put itt you that way brads ou to accept De. Dice's evidece on that. But itsays one of wo ings Ihappened either and bots involving te accused, Ether thee was a fight tak Michael ses, at the Clay place in which ese fal iis were notsustaied, anda conimuationofthefight afer Michel en the cikren ad gone to bed when they got back to Rural Route 8, Woodsoe, andthe alleged njeres werereceived ia hat second part of te Fight the absolutely faa injures ora & Tet ofthe injuries received at the Claydon locality, the Claydonplce, Maxine bad recdved suck ‘ajc hat she was she condition deseribed by te accused and ise di fal and ht be head or fide fhe face inthe ttl of ine posible fall she may have bad inthe house on Sunday, tat his ‘asthe result of he ures that ha bea init before. And thats the way, 8 Tundesd it te ‘Crown pas me ease you (Charge w Jury, Vo. 3, 7673057840 35, The wil judge suggested that the jury should be inclined to accept Michael Mclean’s testimony over that of the Claydons and Mr. Salmon. He suggested that “Maxine's bruises, orsome ‘of them, are consistent with Michael's stories, and itis for you to decide whether you believe him as to these blows.” The tial judge continued: Now, I oint out to you tht, generally speaking, Michaels evidence accords wit he accused tertmony and withthe Clans testimony, etcep with reard to the Blows aod the fighting CCayons. And yet, the impo thing -- ran important thing -- bout Michie’ evidence i that ‘accords with the bruises a itis the only evidence that Thave heard ht Fis in withthe picture you fe when yu look at those pbotoraphs. ‘The tral judge expressed his skepticism that Maxine’s injuries resulted from a series of falls, and agave his view that her injuries were asa result of assaults ‘Now tis trethat ti open you, ad to anyone say hata woman tha fils inthe bathroom hee times anil out of bed foe five rsx times, may bruise here. Buh for you to determine ‘wen you lok tt and hi you wil dt ery ficult to comet -- this ison my view =-1> ‘comeio te conclusion that ose ruse are general speaking not--Ithik tht thse bruises are ‘onset wih war Mz. Povellsai they wee: that that woraa bad been beaten up. Now that sy ‘View. You donot hve to seep it, you do not have to accept Me Powell's view. ‘The only reson I ive ito you ows, yousre of at opinion, then Michael's evidence is consistent wid iat. Ad ‘Michael's evidence is desperately important ia this case Charge ory, V3, STUD 87140 2 36. _Aftersevenoursof deliberation the jury retumeda verdict of manslaughter, On March 11, 1971, Mr. Salmon was sentenced to en years imprisonment inthe penitentiary. In his reaons for sentence the trl judge provided his opinion on the ass forthe jurys verdict of manslaughter: ‘Te jury has found infect tha this man caused the death of Maxine Ditch It sclear tat this arose because te had “beaten be up” unmercifly and fall disabled her, To rome exten the case ‘depends upon circumstantial evidence: o-one give evidence ofa blow or Bows tat on medial ‘evidence must hae cute the mortal inne “Th pone ght to uci the injuries to eras ‘ffs inthe house, but its apparent the jury id not love that he falls othe extent which they occured cased the death, I suspect that the accused vas so acted by drink tat ie doesnot ‘ow or remeaber the exact occasions ot ways in which he fatal blows were srk, othe age done. In ay event, te jury appeared to hve accepted the defence, nt suggested by the accused, but put forward by meas my duty is, hat the prisoner was so affected by drink tat be could ot form the intent necessary here to jus a verdict of murder. But hee giy of manslaughter std only saved fom being found put of murder because of his drunken condition athe tine. Reasons for Sentence, Vol 3, 6220.65 8. The Appeal to the Court of Appeal 37. ‘The Appellant's appeal fromhis conviction and sentence was dismissed, His counsel argued ‘as one ground of appeal thatthe tral judge had improperly admitted prejudicial photographs of | Maxine’s body into evidence. Gale C..0. said: ‘We se no meritinthis ground whatever sit appears os that because ofthe ses petted ote uy, the pictues were no only relevant to there sue bit wer of great siguicance. The tear of the defence was that the fal injure to the deceased eed froma numb of alls by the deceased woman, nd hat they were no inflicted by the appelln as was alleged bythe Crown, There was mica evidence introduced which indicated the jars nee cased by heavy blows to thehead aed body ofthe deceased, and the doctor who testified ned thee was slight possibility the injaries ‘eaulted from the allege ill by the deceased. In ou opi, the photographs were very Epil ‘he ry who were required brig the pacial kwrdge tad experience o bes on he question ‘of whether the types of injuries described to and stad fr them might have been caused inthe ‘manner sugges by th accuse. Iwas essential for her to appreciate fly theatre and exten ofthe injariesin order to decide whether they might have resulted fom fall ina bathroom ox down 4 flight of cement stairs. Having seen hse ocopraphs, we fel they mist have assed he jury in ‘eating the evidence te thea of both the Crown athe defece nl enable the a rach Sensible and just esl ‘This part ofthe Court of Appeals opinion is a precursor to the fresh evidence now available as it ‘underscores how the photographs of Ms. Ditchficld especially those of her face, showed such severe 2 bruising that they likely would have convinced the jury that she mast have been the victim of repeated and vicious assaults, The trial judge himself had described them ins charge a “a graphic and impressive index and ilustation of whats before you." Two oer grounds of appeal relteé to the tial judge allowing Michoe! Melean to be sworn as a witoess, and tothe trial judge's instruction on evidence capable of coroborting Micha!’ testimony. The Court of Appeal lsc smissed the sentence appeal B. x Salmon (1973), 10 CCC, 2) 184 (Ont.CA), AB, Vo. T2DT ‘Chang tury, Vol3, $7610.20 4 PARTI ‘THE FRESH EVIDENCE 38. 112000, the Appellant approached counsel and sought assistance to have his conviction for ‘manslaughter evowed. Counvel obtained ho tral tansripts and the Apps! Dock fom the Cour of Appeal archives, and found a copy ofthe Crown brie in the Archives of Ontario, The Crown brief contained documents that provided additonal clarification of the case. Inpatcula, they ‘explained more fly the events surrounding the police arrival at Mr. Salmon’shome on September 22, and included details of his ares and his statement tothe police afer hs ast. Counsel also spoke on the telephone withthe Appellant's tal awyers (bth of whom are now deceased) and met with Crown course! at ial, Clay Powell QC. Crown Bie, AB, VoL2 Recent Corespondene onthe Css, AB, Vol 1, Tab 10 239, ‘The fundamental ouch eases always Deen whether Ms, Dtchfleld died of natura causes or was the victim of series of bratlassauits.Ift was the later, the Appellant hadtobe the perpetrator ofthe asaults. The evidence of the patologist, Dr. Dietrich, and, toalesser dere, the evidence of Dr Adams, combined with the graphic photographs of Ms, Ditchfield taken atatopsy, made foran overwhelmingcase ofhomicide, Dr. Dierich’s reluctant concession tothe tril judge's questions, that a eres of flls could have caused her injuries —“i i doubt” — was followed by «series of assertions that "the blow” onthe right side of her head and her brain damage could only result fom alla greatfall might doit" or om “ablow onthe head wih broad bunt object, and delivered with extrem force”. Dr Ditch suggested “foot” with a very firm she” could ‘have caused the damage. These kinds of answers did not marry with the notion of a series of short 25 falls in the bathroom and bedroom. As woll, asthe tial judge pointed out to the jury inhi chargo, ‘Michael Mclean’s testimony was supported by Dr. Dietrich’s opinion that Ms. Ditchfield had been. “eaten uy As aresuit of allthis, insuficient heed was pad to the absence of any bore fractures, to Maxine's skull or anywhere else. Evidence of Dr Dietrich, Vo. ,239/4024020, 26010-15,27128.2720 . Diseih's Post Mariem Repor and Willa, AB, Vol.2, Tb l pp.3446 ‘See auopsy phoopraps, AB, Val 3, Tabs 11 10 40, Since it wae known that Me. Ditchfield was still ambulatory when she let the Claydons! home on Sunday night, the more serious “blows” would have to have occurred thereafter, presumably once Mr. Salmon and Ms. Ditchfeld arrived home, This meant that Mr, Salmon, in his ‘tial testimony, had to convince the jury that Dr. Dietrich was wrong because he was the only witness toevents at the home—a burden that he was unlikely to meet unless there was some expert pathology evidence to back him up. 1. TheNew Pathology Evidence 41. Pathologists are always atthe forefront ofan investigation ino a suspicious death and, like ‘anyother professionals, they will make mistakes. ns recent report, Commissioner Goudge wrote: ‘The elblty of fresic pathology opinions mates a great deal othe criminal justice system. In «cases in wich there are merit sues of pathology asofen our in peat deathcses, flawed pathology can lead to wagic outcomes. The cases we examined at is Inquy provide graphic evidence ofthat reality, awed pathology can esultina paren amily meme, or eaepiver Being ‘wrongly enangled inthe criminal justice system, and wrongly convicted and incarcerated, as ‘happened to Me. Malis Sohason in Valin’ case. Tis equally bagi, however, flawed paology steers the criminal justice system ama rom the rac perpeatr, a5 heppened in Jean'scase. Inch ‘case, the eoneou patology ald focus te criminal investigation on enc’ s babysit, Instead, ‘Benda Waudby,fena's mother, became te focus ofthe investigation. Asa result, the babysiter, ‘who was th on responsible for Jean's death, escaped detection for many years. In ithe situation, ‘wheter the awed pathology pays patina wrongful conviction or inalowing criminal oescape ‘detection, juice fot served and public confidence in the legal systems diminished. As we wllsee, ‘both the scence nd the criminal ustce ytem have importa les playin easurng agaist einer possibiiy Inguiry int Pditric Forensic Pathology ix Ontario, ol. 1p. 10 26 42, Mr. Salmon told Dr. Adams, told the police (infra), told the Court at his trial, and sill tells all those who will istea thet he never struck Maxine Ditchfield. He has always said that she was. inebriated on the Satusday night, fist fell in the kitchen at the Claydons’ home, acted strangely thereafter and was extemely clumsy throughout Sunday. She had to be helped to walk to the: bathroom, she was weak, she fell several times during the day inthe bathroom and hit her head on. ‘fixtures and on the floor, and fell out of bed numerous times. She had more and more bruises on her as the day progressed. On Monday, she lapsed into unconsciousness and he called forthe doctor to ‘come. If Mr. Salmon's statement to the police (infra, which the jury did not hear) and his trial testimony was true, the pathology should show two things 1. That Maxine’s external injuries were superficial, and in places that would be expected if they resulted from a series of falls, such as in areas of projections like clbows and knees. 2. That Maxine’s head injuries were consistent with one or more falls and not one or ‘more blows. Dr. Peter Markesteya, forensic pathologist in Winnipeg, was consulted fist. He was of the view thatthe cate was not a homicide, and suggested the need to consult a neuropaologist. Dr. David Ramsay «neuropathologist inthe Department of Pathology a the University Hospital in London, ‘Ontario, was then conslted. He prepared a report on January 31,2010, Counsl then consulted Dr. “Michael Shira, a forensic pathologist ls atthe University Hospital in London. He prepared @ report on May 5, 2011. Dr. Markesteyn prodiced his report on May'31, 2011, Dr. Ramsay 8 the neuropatologit, as focussed exclusively onthe head and brain injuries. De, Shkrum and Dr. -Markesten, as forensic pthologits have presented holistic view ofthe casey reviewing ll Ms. Ditches injures including her head and bain injuries. After the Supreme Court of Canada reference the Respondent retained the services of Dr Wiliam Halliday clinical neuopathologist, at the Hospital for Sick Children. n 43, The reports ofthe two new pathologists and the two forensic pathologists have as their ‘common theme that Maxine Ditchfield was nota homicide victim but likely incured her injures through series of shor fl, the frst one posiblyonthe steps leading into the house, nd thereafter inthe bathroom and inthe bedroom. Photographs oftwoof these thee locations were taken by the ‘police: Photographs, AB, Vol. 3, Tab 27 Photographs, AB, Vol.3, Tabs 30 wo 33 (including Exhibit 4 at wis!) : ? ‘Photographs, AB, Vol. 3, Tabs 30 to 33 (including Exhibit 4 st trial) (a) ‘The Head Injuries (Did Ms. Ditchfteld’s Brain Contusion Result from a Blow or a Fall? 44, Atrial, Dr. Dietrich testified that a brain contusion above and behind Ms, Ditehfield’s right ‘eye was “a broad bruise consistent with trauma”, and led to her death. He thought it “doubtful” that this injury, and her scalp injures, would have resulted from a fall. He testified that it would be difficult for her to have incurred the injury at the top of her scalp in a fll. He acknowledged that this injury could have been caused by a fall on the steps leading into the house but qualified this ‘when he said that he would have expected the roughness of the steps to have caused a cut ot scratches on her scalp. Evidence of Dr. Dice Vol. 1, 26430-26720, 45. Dr Ramsay associates the brain contusion above and behind Ms, Ditchfild'sriht eye with one or both of she Selp injuries inthe ares of the left temple and on te top ofthe head. He believes thatthe location ofthe bran contusion establishes thatthe injures were the result ofa fall and not fom a blow or impact tothe hea. He points out © There were no contusions of the inferior surfaces ofthe brain immediately below the injury fon the top of Ms. Dietrich’s head, or behind the injury in her leRt temple area. These contusions, when they exist recalled coup contusions and are indicative ofa direct impact (o the lead, such as a blow from a sol object. ‘¢ Thebrain contusion behind her right eye was instead, “ata distance from the sites ofher head injuries which define it as a contrecoup contusion”. A contrecoup contusion is indicative of afall, not ablow. ‘Dr. Ramsay explains i this way in his report 31 ‘Contrecoup bain coosions result from an impact consequat oma alma blow. tn contrast, the Impact foma Bow wil, itis of suficieat force, sult a whats known asa'cou brain consion {nd willbe fund inthe brain imme under these of impact. These observations are always made in forensic neuropathology texts: "Coup contusions] occur beneath he st ofimpect.acontrecoup contusion it one that 1 not immediatly beneath the impact sie this dibsion of conturonal injury it Clasialy sen when the moving head ies the ground. (il, He 205 ore Neat p45) Fallnduced coral homorrhages |e, contusions] tendo accurate opposite these ofimpact.. A blow ifr brain nares mainky a the impact site” ‘GeomchenAew d a ,206 “ea Neopia sied Newslog. 2) Dr, Ramsay continues ‘Ms. Ditch dd not have brain coup contusions under the buss in the eon of her left temple, ‘or under the bruise atthe top of her het For these reasons [daagree with Dr, Dietrich’ coneanon {hat he cate ofthe rising andthe bin contsion was "mos fikelyabowto the head wih broad, ‘untobjece The convecoup contusions must have resuled from fll and nat blow. For the same reasons, Drs. Shkrum and Markesteyn agree that Ms. Dietrich’s head injures came froma fall, Notably, Dr. Dietrich made no reference in his report or in his testimony to the concepts of coup and contrecoup injuries. 5-6 Reportof De. Sou, May/t1, FEM, ReprofDy Ran. 10, Pro Ele Maer PM Ta ‘Tab, p 8: Repo of Dr. Maeteyn, May 3/11, FEM, Tb, pp. 46, Dr. Halliday came to a similar finding. He writes: Adtonally noted when he bein vas viewed from he base wat an area of reentconuson (xem) Involving the ifrioe right fon lobe and the tip ofthe right enporal lobe. The pater of brain injury described by De. Dietrich s wel ecogrize inthe study of taumatic iris ofthe bain. Tis 'stnkeoping with cont coup injury ofthe bean and would indicate that Maxine Dc hield ad fen. nd hit ee head, ost key the et side. De. Diauih dos not develop the ide ofthe hed in movement coming against a brod surface (2 fall), The is unforunate Because would have alloned an explanation forall the autopsy neuropathology findings. Repo of a Halla, Mas, 3013 al Ma, 12/4 Sen, PEM, Ta, pal? 2 i) Isthere Significance o the Location of the Bruise on the Top ofthe Scalp? which Dr. Dietrich had attributed considerable significance. Dr. Shkrum writes: Projecting surfaces such a steps or bathroom Sxtres could cause bruising on top ofthe sal. The potential dangers posed by a bathroom have been noted inthe frei etre for more chan fais-ceuury. Despite De. Diewch's opinion that fli tbe bathroom environment coud not hive edt the sap and eraniocerebrl trauma observed, Tagre wih Dr. Ramsay's coclusion that this tern fsa and craniocerebral injures was consistent wit ling ant consistent with Ow. ‘Dr, Matkesteyn says much the same: 1uismy opinion thatthe deceased sustained superficial injures buses) oad aroundherlefteye and tothetopofherhead, The later coal welbe due ther having hither head while sloaching forward ‘gains basin, tub andlor lor andra head fist ot of bed. As sed, he conan othe ‘brain ae casi indicators of fall, nota Bow. ‘The experts also considered Dr. Dietrich’s suggestion that, ifshe had fallen on the outside steps, he ‘would have expected a cut or scratches on her scalp inthe area of the bruising on the top ot her head. DD. Shkrum writes: De Ditch i otthinka fal on thestnrs would ave led tothe slp nur on the undersurface of ‘he top af the head although er be did sty that this was “possible but unasul”. Notably, De Dietichsasessment ofthe scene occured ding the al. th curetforesc pathology pace, this assessment is best done before the autopsy He based his inal oplaionon the lack of exernlly ‘isiblesalp injury which he would have expected iter had been head coract onthe rough fice ofthe stairs, and on the ack of emorhage using microscopic assessment kin ftom the top ofthe ‘cal however, be didnot have the sap o beter expse thi area In aon blunt tau ealp Injuries may ote externally visible as bruises but are oly revealed withreetionof the ssip. Tis ‘sue o bleeding fo sliding ofthe vulnerable iterface between the sap und sl. Also, the ‘curbloning effect of tick air on the impact can lesen the development of te exter salp aura, Report of Dr. Ramsty, Jn. 1/10, FEM, Tab 1p. Report of Dr. Markstye, May 31/1, FEM, Tab3, p24 Report oD. Strum, May 5/1, FEM, Tab2, pes Gil) The Severity of the Head Injuries 48. Onsevera occasions inistrial testimony, Dr Dietrich referredto the severity of the "blow" ‘required to cause the head injuries. Dr. Markesteyn thought they were the result of “minimal to moderate force”. Dr. Ramsay says the same. Under the heading “How severe was Ms. Ditchfeld’s ‘head injury?”, he states: 3 | disagre wth Dr Diewch’sconeluson thatthe force ofthe impacts was “tere” thatthe impacts were delivered with extreme force Since the brain contusion was atively localized and ere was ‘shall fecture, the heed injures were caused by impact of, at mos, moderate intensity, which ‘Wouldnt necessariy have caused Ms, Diced os coscouanes Dr. Halliday writes: Quit sujetvely, I woul move de semen weve sue oan the der ge Repor of Dr. Masesteyn May 31/11, FEM, Tab 3p. 2; Reportof Dr. Ramsay Ja. 1/10, PEM, Tab2,p.7 Reportof Dr. Haly, Mar, 3013 aod Mar 2/4 addendum, PEM, Te 4, p. 6 dy) The Arterial Dissection 49. Dr-Ramsay attributes the existence ofan arterial dissection in Ms. Ditchfield's right middl= cxrebral artery asthe precipitating event that led to her death. n this egard, De. Ramsay's epot needs to be quoted in full ‘The anil dsection ‘An aerial dissection occurs when the lnng ofthe lumen ofthe blood vesel (he ning) is tom nt bod ents the blood vesel wal, The ety of blood into the wal ofthe Blood vessel causes the Iumen to narow. AS a coasequesc, the ate of blood flow is reduced and, sace slow-moving Statioaar blood tends lta blood eat, or thrombus, fons ad tops the oof blood tothe ark ‘of brain tht the locked tery was suppying and causes an infact in that area ofthe rat. Signifcany, er is evidence trom the atopy that Ms. Diced had an areal section. In ‘eferrng othe ight mide cerebral ae in is autopsy report, De. Dich described bod ia te ‘idle pat of wall (“blood in media." a bing he eatin during bis testimony (page 280) when he is discussing the significance of inflammatory charges in regard to the age of he bran injuries "In cenan pars of the microscopic examination though of th arey there was some iftaontion there altendan wits the haemorrhage inthe wll ef th blood veel ‘This isa sriking Finting. An artery isa blod vessel ta, ke all blood vessel, is a tube. Blood pases through centre of the tbe (ie hrough the lumen of te blood vessel), The wall he abe fas thes ayers. which ae. going ourvards fom the lea, he ima ahi ayer ofall that ine ‘he lumen) te nel (he hicks ofthe layers, which made om mul) spe advent ‘outside lye, which s composed of fibrous tise) Dr. Dietwieh’s discover of blood inthe wall of fm recy suggest tha the wall of the ary was tom in other words, there was an arterial dissetion, Dr, Detrich azo descrites hin in of blood around the ight middle cereal atey, “This indizues wat the ear io the wall ofthe bod vessel traversed the out Iyer of the Blood ‘este the adventitia, causing blod to leak out or the vessel (ginal emphasis) 4 Dr. Ramsay goes onto explain that an arterial dissection can occur spontaneously or result from ead trauma, Report of Dr, Ramsay, Jan 14/10, FEM, Tab pp. 910 50. Dr. Markesteyn also notes thatthe right middle cerebral artery was clotted, and thatthe \sinbusis had caused a stroke leading to death. He belleves the injury could have resulted from the fll process, or from its impact: tsa wellknown tinal fact, reflected athe erature, tht jury tthe carotid aris (inthe eck) 1 the result of hypertiexion ofthe neck duo fal can lend injury and ths tromboss oting) ‘ofthese vessels, subsequent loosening ofthese cls giving ese o so-called thrombo emboli wit ‘beget nfrton ofthe bain ok), Dr. Markesteyn notes thatthe carotid arteries were not examined by Dr. Dietrich, Dr, Markesteyn favours neck hyperflexion as the more likaly cause ofthe diesection but he does not exclude Dr. ‘Ramsay's opinion thatthe impact on the head was its cause, Report of De. Markstyn, May 1/1, FEM, Tab 3 pp Land 25 51. Dr. Halliday, after noting Dr. Dietrich’s conclusion that Ms. Ditchfield's death was “caused by severe brain damage, due ta blunt tntima tothe head”, said: 1 disagree with Dr. Diewich. I believe Mrs. Ditch ded asthe consequence of amor stroke Involving her ight cerebral hemisphere. The stroke as caused bya dissection and oetsion of het rightmidale cerebral anery. Dissectons can ocur wih surprisingly mideranal aura, Indeed, in some cases, they appari hve happened spontaneously or witout bviows ese. With respect t> traumatic forces, 1 Would not characterize thm as Severe. acknowledge that te vim is heavily buised. However, there is 00 spliting or laceration ofthe seal, no sl acts, 0 broken ot chipped teeth andthe brain Fnngs a limited to occlusion ofthe right middle cereal ary the ‘consequent infrt (stoke) andthe contasin of theinferor onal and nero temporal cerebral hemisphere. Widespread cortical contusion i ot documented, [Report of Dr, Hilda, Mar. 0/13 and Mar 12/4 aendum, FEM, Ta 4, p.6 35 (W) Is there Significance to the Petechial Hemorrhages in the Brain? 52. In support of his thesis thatthe deceased was a victim of a besting, Dr. Ditch noted petechil hemorthages in the brain indicative, he tested, of «concussive-type injury. The tial judge made specific reference to this in his jury charge. Dr. Ramsay and Dr. Markesteyn disagree. Dr. Markestyn sai nis report: ‘Lote that petechial hemorrhages, like thse sce nthe deceased's ran, are often found in people ‘sho have sustained anoxic “nro the bina the el of xia cet, Dr. Halliday also considered petechial hemorthages to be non-specific ~ “Their cause is likely ‘multifactorial Reportf Dr, Ramey. Jas, 410, FEM, Tab 1 p.7 ynleue uf br Diet, Vol 133909049, 2934026640 Cargo Jury, Vol 3, 58/2030, ‘Repar of Dr. Marketa, May 3/11, FEM, Ta 3, p12 ‘Repar of Dr. Halliy, Mar 30/13 and Mac 1218 addendum, FEM, Ta 4.4 (b) The Superficial External Injuries ‘53, Dr. Dietrich believed thatthe injuries on the outside of Ms. Ditchfield’s body — to her face, ‘ams, legs and torso — provided further evidence that she had been the victim of a beating. Dr. ‘Markesteyn and Dr, Shkrum believe that the distribution and grouping of injuries suggest alternative origins, Rego of Dr hu, May 51, FEM, 2,2 (The Injuries in the Areas of the Nose, Jawline and Chin Sd Tir Dietrich included the injuries in the arese of the nove, jawline and chin in the list of “definitely ahnnrmat” Findings that made up five ofthe “33 separate bruises and three small serape 36 abrasions and a small scratch mark on her body.” These injuries were used as part ofthe Crown's Justification for introducing two photographs of Ms. Ditchfield’s face (exhibits 15 and 16). Di. Dietrich mixed in these injuries, and the petechial hemorthages in the brain, as part of the consequences ofthe “considerable force” tothe skull, He testified: ‘The injuries othe area of the left eye a the lf temporal muscle and the chin and jaw could trast impact forces he rain wel, causing fit the mall hemorrhages, he concessve Anjures,an, les possibly, by a rotational fore that can occur wth uch injures, the head tin ‘motion the brain being placed inthis floating postion nade hs fed cavity -- cranial cavity «blow tthe sdeor surface of the skull can cause rotation of he rain anda wirling-pe motion {nthe spinal uid, and stretch Blood vessels af the base ofthe Brain or make them impinge onthe ‘bony prominences at he base ofthe brain and lad to vascular damage and cating. (emphasis ded) Inhis closing address, the Crown focussed on the bruise of the jaw and sai: has oo content wil yo Hey right band fst being apple, gentlemen, dot know what itis the blow to the sie ofthe face, Evidence of Dr, Die Vol. 1, 24180-24015, 4230-243/0, 25014-25118, 2671-48 (Crown Closing, Vo. 3, 56140 ‘55. Instatk contastto Dr. Dietrich opinions, Dr. Shkrum and Dr, Markesteym considered that the injuries inthe areas of Ms, itchficld's nos, jaw and chin were likely caused by atempts to ‘ventilate Ms, Ditchfield atthe Woodstock Hospital (Dr. Halliday gave no opinion inthis regard, Starting at 1:00 p.m. on Monday until her death at 10:00 a. o Tuesday, «Bird Respirator had ‘een placed over her mouth and nose. Dr, Shkrum waits: ‘The symmetrical dssbution of the injuries on and aroun he nose, onthe jin and under the hin could bave arisen trom the pressure and fiction exerted by a facial mas tse dug assisted ‘ventilation ands suggesiveo it.The ruse on tele jacould also have ben fom digital pressure sed to manipulate he aw during his proces “This evidence gives particular credibility to the Appellants trial testimony because, when asked if ‘he saw the bruise under her jaw on Sunday, he responded: “No, I never noticed it.” [Report of De. Shum, May S/t1, FEM, Tp. 3; Report De. Maeseyn, May 3/1, FEM, Tab3,p. 24 ‘Bvdence of Salmon, Vol.2, 36/1020 a7 Gi) The Balance of the External Injuries 56 Dr. Markesteyn and Dr. Shkrum are both of the opinion thatthe balance of the extemal injuries suggest a series of falls because they ae all to “prominent” areas on the body. For example, Dr. Markesteyn says: “The deceased, he evideae makes cls, wat drunk and faling over one Sana night and Sunday ‘morning. The evidence hat she fel off a chai on ber knees and on he: buttocks i feflected inthe injures described to her butocks and around her knes. Mr. Salmon described many fallin the Tazo and from te bed in is testimony The bruises to the font ofthe skin of her pelvis ae ‘consistent with having been caused by impac(s) anor agansta Mat suri ast involved the most prominent pars of the body where the skeleton is loses the skin. Ths unl station tn Wwhich a person is the vet ofan assault with susteined blows which wll often land in he less ‘prominent parts ofthe body. ‘Aside fom a direct perpenticular stigh-on impact, te injuries undereth the bresst coud be the result of "being hung up” at the body slides face down, the breast geting caught in a downward ‘movement such as ctching the edge of something. “The dragging etfects ofthe ams neste thesraping direction of he force which includes éeagsing ‘butalo cludes slipping or falling against surface or over he ede ofa ste. (emphasis aed) ‘There were no defensive wounds on Ms, Ditchfeld’s hands or forearms, which might have been expected ifshe had been the victim ofa series of assaults. Dr. Shirum nots thatthe injuries othe right elbow, lft lip, knees, upper shins and left buttock were all to “bony prominences" and suggested “a history of repeated falls”. Dr. Halliday write that “a number of combinations and permutations of events ean be entertained.” Repar ofr. Markestey, May 3/11, FEM, Tab 3,p.22,24 Report of Dr, Scum, May SI, FEN Tab 2, p45 Report ofr. Hay, Mar 3013 and Mar 13/14 addendum, FEM, Ta 4, p18 (c) The Likelihood that Ms. Ditchficld Incurred Her Injuries Through a Series of Short Balls ST. Dr. Shkrum observes that Ms. Ditchfield’s inebrited condition on the Saturday night and ‘Sanday moming meant that she was pre-disposed to falling, The collection of injuies on her let 38 side to her facial area, her arm and chest areas, and to her left foot (which Dr. Dietrich noted were inthe shape ofa “strap area of a woman's shoe") could have resulted from her tripping and falling ina single incident. Report of Dr. hr, May 5/1, FEM, Tab2, pp. 68 8. Dr. Ramsay makes the same type of observations. As he states in his report: ‘Ms, Ditchfeld had been drinking on Sanday evening and the evidence suggests she had been

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